From a brief [UPDATE: link added] quoted in Duffy v. Lusk, 2010 WL 1433481 (N.J. Super. Ct. App. Div. Apr. 8):
POINT I: THIS [IS] NOT AN INSANE LAWSUIT BROUGHT IN IGNORANCE OF ROOKER-FELDMAN PRINCIPLES OR JUDICIAL OR SOVEREIGN IMMUNITY.
I should note that petitioner, while acting pro se, is a lawyer.
JKB says:
They must be a defense lawyer since point I is very defensive.
April 13, 2010, 5:57 pmChris Travers says:
ROFL….
Remind me never to hire a lawyer with the last name of “Duffy” just to avoid hiring this guy…
April 13, 2010, 6:05 pmWilmer Warthog says:
There is a strategy whereby one attempts to anticipate, address first, and deflate, your opponent’s likely first thought. Perhaps he was employing this approach?!?!?!
April 13, 2010, 6:06 pmlucia says:
Out of curiosity, was Point 1 in all caps? is that conventional?
April 13, 2010, 6:21 pmUrso says:
Certainly better than saying “POINT I: THIS IS AN INSANE LAWSUIT BROUGHT IN IGNORANCE OF ROOKER-FELDMAN PRINCIPLES OR JUDICIAL OR SOVEREIGN IMMUNITY.”
April 13, 2010, 6:32 pmTOTALLY says:
“THIS [IS] NOT AN INSANE LAWSUIT…”
TOTALLY NOT INSANE.
April 13, 2010, 6:35 pmKent Scheidegger says:
Regrettably, it is quite common, especially in trial courts. It tends to be less so as you move up to higher courts.
April 13, 2010, 6:38 pmChrisTS says:
This must be why so many of my students preface a comment with “This is probably stupid.” Oh, no. It would have to be “This probably not stupid”?
April 13, 2010, 6:43 pmwm13 says:
Actually, I was taught in law school (Boalt) to do headings in all caps. However, a few years out of law school, when I was submitting a request to an agency, the agency counsel was annoyed at such a format because she thought I was shouting at her. So we re-formatted and resubmitted that particular piece. I have not worked on a brief or other judicial submission in 20-plus years, so I don’t know how most people format them these days.
April 13, 2010, 6:45 pmShelbyC says:
I don’t know. If your lawsuit is, in fact, an insane lawsuit brought in ignorance of Rooker-Feldman principles or judicial or soverign immunity, then it’s probably a pretty good way to start it.
April 13, 2010, 6:54 pmAnderson says:
Prof. Volokh is right. Omitting “is” was inexcusable.
April 13, 2010, 6:59 pmMalvolio says:
Is it possible that “insane” is a typo for some other word? Admittedly, I can’t think of another word, except “inane”, which would be worse, but I also cannot imagine a normally intelligent adult writing “this is not insane” without think, “Maybe this is insane…”
April 13, 2010, 8:09 pmSam Heldman says:
I don’t know. Maybe the brief was in opposition to a motion to dismiss, and maybe the brief in support of the motion to dismiss included a sentence saying that the case *was* an “insane lawsuit brought in ignorance” blah blah blah. If so, I would think that this section heading in the opposing brief was pretty appropriate, and I know some judges who would think so, too.
Then again, maybe you have all looked at the docket entries online and know the procedural history of the case before commenting, right?
April 13, 2010, 8:21 pmwolfefan says:
Hi –
This appears to be the decision in the case in question:
http://www.leagle.com/unsecure/page.htm?shortname=innjco20100408232
It doesn’t display properly on my monitor; hopefully you will have better luck than I do. Someone else may be able to find it in a different database.
[Thanks, added link! -EV]
April 13, 2010, 8:23 pmjuris imprudent says:
I don’t about anyone else but I had to go back and check that the plaintiff’s name wasn’t “Daffy”.
April 13, 2010, 8:40 pmTeh Anonymous says:
I think it’s an awesome(ly hilarious) way to start off. Of course, IANAL.
April 13, 2010, 8:48 pmEugene Volokh says:
Sam Heldman: My point is that, regardless of what the other side might have said, “This is not an insane lawsuit brought in ignorance of …” is poor rhetoric — even if it’s a response to a specific accusation, it needlessly highlights the accusation against you in the course of trying to deny it. Saying “I am not a corrupt buffoon” is a poor way, for instance, of responding to a charge that I’m a corrupt buffoon. The point can easily be recast as “This lawsuit is consistent with the Rooker-Feldman doctrine,” or “Sovereign immunity and judicial immunity do not apply here.”
April 13, 2010, 8:51 pmUrso says:
This actually ties in to Prof. Kerr’s long ago post about how when you tell someone “you do not owe me a beer” later they remember it as “you owe me a beer.” Like who can hear Nixon say “I am not a crook” without thinking to himself “what a crook!”
April 13, 2010, 9:07 pmPhillip J. Fry says:
That decision has some other great quotes. P seems to be arguing that he has a cause of action under the ADA, alleging he was involuntarily assigned to represent a client by the court and that it interfered with treatment for his disability. The Court responds:
Nevertheless, even if we assume that plaintiff is a qualified individual with a disability, his allegations do not demonstrate that he was denied meaningful access to the courts because of this disability. The opposite is more likely; if anything, plaintiff’s primary grievance is that he was refused the ability to de-access the courts, that is, not be assigned to represent C.G.
April 13, 2010, 10:32 pmSean M. says:
Lucia,
Listing brief points in all caps is fairly common in New Jersey Appellate Division opinions. It is, in part, because of New Jersey Rule 2:11-3(e) — cited in the linked opinion — which allows the Appellate Division to designate certain arguments as “without sufficient merit to warrant discussion in a written opinion.” In criminal cases, the court may do so, but must “specif[y] such arguments.”
The court usually discharges the “specify” requirement by listing the appellant’s brief points in all caps. Technically, the rule does not require a verbatim recitation of the brief points, and some opinions don’t, but it seems to be the easiest way–and most common way–to cover those bases. Also, the rule doesn’t require a specification of arguments in civil cases before designating an argument without merit, but judges tend do so to make the process consistent between civil and criminal cases, I suppose.
And that is your random piece of New Jersey Civil Procedure nerdery for the day.
April 13, 2010, 10:54 pmJoey says:
Here’s a link to the properly formatted opinion: http://www.judiciary.state.nj.us/opinions/a1285-07.pdf
Also, not that the heading makes sense anyway, but what could the Rooker-Feldman doctrine possibly have to do with a case brought in state court?
[Updated, thanks! -EV]
April 13, 2010, 10:59 pmJay says:
Since the lawsuit is brought in state court, isn’t the statement that it isn’t brought in violation of the Rooker-Feldman doctrine likely correct?
April 14, 2010, 12:45 amjellis58 says:
I was thinking the same thing. Maybe he is saying it would be insane to think that Rooker-Feldman would apply to state court proceedings and just thought he’d let the judge know he is not ignorant this fact. On second thought, I think Im probably giving this litigant way too much credit.
April 14, 2010, 6:11 amSam Heldman says:
Having found the brief in question online (and you can too! – Google a couple of key phrases), I would now agree that this was not a great way to start the argument in question. I understand the writer’s frustration and the point he was trying to get across. But the headline (which, by the way, was not in all caps in the body of the brief) does come across as too defensive in this instance. Still, I can imagine other circumstances in which such a heading might arguably be good, if it was a way of highlighting the absurdity of *the other side’s*, or *the trial judge’s*, overheated rhetoric about the case. I would be wary of any advice about “never” doing x or y or z in a brief.
April 14, 2010, 7:44 amAJK says:
You can read the brief at http://www.duffylaw.org/Brief.pdf
It features some other novel constructions, including “These principles do not apply in cases such as these – there is a Supreme Court case that says so!”
April 14, 2010, 10:52 amTOTALLY says:
No. Your’re wrong. Responding in kind to exaggeration or hyperbole is neither “appropriate” nor effective. If opposing counsel calls your argument insane, the appropriate and effective response to explain why it is not insane, which, of course, makes opposing counsel’s position appear insane. Stating outright that your position is not insane makes any sane person wonder if, in fact, your position is insane. See Malvolio’s comment.
I suspect that most good judges don’t think this kind of briefing is ever appropriate, with perhaps the exception of similar writing made in good humor among all the parties. Good judges might accept or overlook such writing, thereby giving the appearance of approval, because they have lowered their standard of what to expect from lawyers.
April 14, 2010, 12:27 pmjellis58 says:
Here is the begining of his argument under point 1(it actually goes on):
Point I: This in not an Insane Lawsuit Brought in Ignorance of
Rooker-Feldman Principles or Judicial or Sovereign Immunity.
(Not Raised Below.)
I feel I need to make this point first because this is the
way this lawsuit has been treated until now: a typical judge or
prosecutor lawsuit brought by a nut (or prisoner) who has
nothing better to do. The State did not argue Rooker-Feldman
(Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68
L. Ed. 362 (1923) and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206
Page 45
(1983)). Still, I think it is the reason that Judge Rafferty
took the suit so lightly: Just another insane lawsuit for the
circular file. Obviously, Rooker-Feldman does not apply in
State Court but I think its general principles of finality are
what led to the lack of consideration of my arguments – or even
the facts. This concept is tightly wrapped with principles of
judicial and sovereign immunity that also got the case
dismissed. These principles do not apply in cases such as
these32 – there is a Supreme Court case that says so! Tennessee
v. Lane, 541 U.S. 509 (2004). In short, this case is nothing
like Hawkins v. Supreme Court of New Jersey, No. 05-4361, 2006
U.S. App. LEXIS 7950 (3d Cir., N.J., March 30, 2006) — it is
much more like Lane.
Well I bet the appelate judges were really glad he cleared that up!
April 14, 2010, 1:25 pmjellis58 says:
i especially like how he aknowledges that no one argued rooker-feldman and that it obviously doesnt apply to state court but he still thinks the doctrine subconsiously affected the trial judges ruling somehow. There really has to be a better use of your brief space.
April 14, 2010, 1:40 pmAJK says:
The brief is over 100 pages long. I don’t think economy of space was his primary concern.
April 14, 2010, 3:27 pmJazz says:
Some jurisdictions’ court rules (especially appellate-level) have format requirements that mandate argument descriptors/titles and capitalization or emphasis thereof. See, e.g., Michigan Court Rule 7.212(C)(7):
April 14, 2010, 4:22 pmJoe Triscari says:
I found this an amusing sentence on p.5 section B of the decision:
Since this site often focuses on language construction, the punctuation makes it ambiguous as to whether his law degree is a disability or an accomplishment. Almost certainly meant as an accomplishment although the paragraph the quote is in focuses on his health problems and status as a disabled person.
To me anyway.
April 14, 2010, 9:40 pmThomas B. Duffy says:
Dear Commenters:
I appreciate your comments above (if it did take a while for me to see them). I do concede that I have a “fool for a client” since other attorneys were too afraid of retaliation to take the case, or even to proof read it. (I note I am no more brave: I filed the suit in the near absolute certainty that I would die from my affliction.) I probably did make some tactical errors as the commenters suggested but they all had reasoning behind them. Additionally, though my judgment is clouded in this case, I am 16-4 on appeals (including 4-0 on reversing convictions for the mentally disabled client to whom I was assigned in this case) so my legal and tactical judgment is usually pretty good – especially on ADA issues.
As one commenter pointed out, you do not know the circumstances under which this case was dismissed and the comments the State and the judge below made in their briefs and rulings. The State had stated in several briefs that the lawsuit was ill-conceived and many other derogatory terms. The most offensive one was that my reliance on Lane was “frivolous and repugnant.” (You may have to be disabled to know how much we hate words like “disgusting, “repugnant” or “bothersome.”) The judge below in his statement dismissing the suit, said something to the effect, “Even if I am wrong on the issues you raise, I just don’t think I can re-examine court proceedings like this.” (I was not “re-examining” anything: I was seeking damages, or declaratory relief, for being assigned to a case, without pay, despite the fact that I needed chemotherapy for a fatal disease.) I took the judge’s statement to be an irrelevant reference to Rooker-Feldman-type concepts and I wanted to make sure that concept did not come up again, which it did not. He also volunteered that he did not think I was “nuts,” then corrected himself to “misguided” for filing the suit. I assume he wanted to dissociate himself from the State’s clear comments to that effect even though he was “siding” with them. So that was the dual Genesis of Point Heading I.
About half the people who knew all the facts and of the lack of analysis below, thought Point I was a bad start. The others agreed with me, that I needed to jolt the judges into actually reading the case. Whatever you think of my methods, the App Div did actually look at the arguments – which is much more than anyone, including me, expected. Very oddly, they actually did address many of the arguments they said they were not addressing. What they did do was substantially hide the facts of the case so their reasoning sounded much better — although most commenters, as you folks have done, bristled at the concept that attorneys were not covered by the ADA (“de-accessing the courts,” when I asked for the case to be accelerated – also recall that Lane’s co-plaintiff was a court reporter). Nearly all readers, even non-lawyers, picked up on the bizarre mistake that “I was not fully disabled,” apparently because I managed to go to school and practice 2 to 4 hours per day, when Social Security had found me disabled under a much higher standard than the ADA. (I note that if I did not practice, they could easily, and correctly, have dismissed the case on the grounds that I was not “otherwise qualified” — that I was too sick to be covered by the ADA. So under their analysis, if you can practice a little, you are not disabled and not covered, but, clearly, if you can’t practice at all, you are not “qualified” and not covered. Such “whip-sawing” will not come as a surprise to anyone who reads ADA cases on a regular basis.)
They also hid the fact I needed chemo for a fatal disease, just calling it “treatment.” (Several people have asked me if I needed to go into detox for alcoholism since “treatment” is the standard euphemism for a stint in detox.) The court faulted me for my seeking the “ad hoc” intervention of the chief judge in the county. The chief judge was the ADA Coordinator listed on the Judiciary’s website for all courts in the county. I wrote to her because a) I needed an accommodation which the judge she supervised had refused and b) I thought the assignment itself was retaliation for an earlier ADA complaint I filed (with the chief judge as civil counsel) against the supervised judge for dragging his feet on appointing a lawyer for the defendant. (The retaliation was: “We took your suggestion and appointed someone. Surprise! It’s you!) And on and on.
In any case, things are getting better. The judge below did not understand really anything in the suit. These judges understood everything in the case but told me, first thing at oral argument, I’d have to go to the NJ Supreme Court to get answers to most of the important questions in the case – they were passing the buck. Still, they found I had some human rights – mainly the right to get paid. (Many have commented that not being paid is the king of “employment injuries,” though rarely seen because it is so blatant, so they did not understand how my employment-related discrimination claims were dismissed when I absolutely alleged the lack of payment was retaliation for representing a person with severe mental disabilities or my own ADA “protected activities” or both.)
Several law professors who called me about filing Amicus Briefs in the NJ Supreme Court thought that the App Div might have written some of the obviously unsupportable (i.e. wrong) propositions in the opinion as part of their buck-passing exercise to assure that cert. was granted. I wish I agreed with them. In any case, if you wish to see my brief for reconsideration, it is at http://www.DuffyLaw.org/recon.pdf.
Many people are helping with the reconsideration and the cert. petition, if necessary. The “insane” issue is done: I did get a foothold that I have some rights. The new similar issue would be the “tone” of the opinion, which is at http://www.DuffyLaw.org/AppDivOpinion.pdf. The judge below did compliment me on my ethics for doing a good job (I obtained a NGBRI verdict) for the client under such difficult circumstances; he just thought I could not sue – for anything. The App Div thought I had a cause of action for wages but took every chance they could to zing me – which is especially inappropriate where the State is winning on what the court admitted were arguable immunities, not on the merits, and where I did what I was told to do, though complaining of discrimination and retaliation. This is why lawyers don’t do pro bono work – especially for people with disabilities.
I do not understand why people, judges in particular, hate people with disabilities. One judge in this entire saga, while conceding the client was mentally disabled, invited the police officers to file disorderly persons charges against her (usually for “acting abnormally” or “bothering” others by being in public) as often as possible and he’d “put her in jail for life, 30 days at a time.” I am happy to report that this judge was subsequently defrocked and disbarred for other reasons (coaching numerous clients to lie in traffic court). Still, I do not find his attitude unusual. Is this your experience too? Or am I just being hyper-vigilant for such derogatory comments?
Some have pointed out that judges treat everybody poorly so they are “equal opportunity” in their discrimination. This is not exactly true. Judges used to call African-American lawyers, “boy” and worse (read Thurgood Marshall’s biography) and female lawyers, “honey,” “dear,” etc. (ask any female lawyer over the age of 55) with impunity. Now they risk severe punishment for anything remotely resembling these transgressions. People with Disabilities must impress it on the civic conscience that alternately ignoring us and then treating us to various forms of animus when we are assertive and refuse to be ignored, is just as corrupt as the above actions were against African-Americans, other minorities and women. The problem is, of all the minorities, People with Disabilities have the lowest socio-economic status and our motivations are poorly understood (e.g. we are disgusting, repugnant, bothersome and, of course, lazy and free-loading) so we have a difficult road ahead of us.
My instinct is to make an issue of the discriminatory reasoning in the cert. petition (e.g. Point V (not I): The Court’s Opinion was affected by stereotypical reasoning, and animus, regarding people with disabilities which is clearly inappropriate, given that the Plaintiff performed his assigned representation, and where the Plaintiff’s suit has merit on a significant issue (right to payment) and where those issues in favor of the State were decided on immunities which the Court conceded were arguable. The Supreme Court must disavow such discriminatory reasoning in cases involving People with Disabilities.). I’d first cite the failure to analyze whether retaliation (if not continued “access” to the courts after “treatment”) was within Congress’ Power to abrogate the 11th Amendment (this was stated ipse dixit in the brief and discussed extensively at oral argument) – or really to address retaliation at all, dismissing it all as a figment of my imagination. Second, I’d go into the ridiculous, stereotypical musings that I might not be “disabled” by, at least, having a rather extensive “record of” disability. Third, I’d go into the discriminatory finding that my application to get a state job, while unemployed and recovering from chemo, and which was part of a large number of other applications including jobs at the Tax Court and the local District Court (all these facts were discussed extensively in the brief and at oral argument), was not a “bona fide” employment search. This freed the Court from analyzing that it took 120 days, with reminders from me every 30 to 40 days, to get a form letter answer (addressing only not-eligibity) to my accommodation request (per se discrimination), that there was no “interactive process” or “individualized inquiry” into the “essential functions” of the job and that I was threatened with an ethics complaint for not following the “Court Rules” while applying for the job and, instead, asking for an accommodation (to waive the “court rule” which made me “ineligible”). (I note this ethics threat and another one, also for asking for an accommodation, are in writing.) Then I’d hit the main point, as above, that these kinds of discriminatory, stereotypical reasoning are unacceptable for other minorities and it must be so for People with Disabilities too.
Thanks for your comments. They are appreciated.
Sincerely,
Tom Duffy
May 10, 2010, 9:32 pmTom@DuffyLaw.org